The latest judgment of the Supreme Court now holds that legislatures in India cannot claim immunity from judicial scrutiny even in respect of their internal proceedings, writes TR Andhyarujina.

On January 10, 2007, the Supreme Court delivered judgment in the case of the expulsion of 12 Members of Parliament. The judgment is not only momentous for the Indian Constitution but for all Constitutions which confer privileges on Parliament. Fifty-six years after the Constitution made the Indian Parliament and state legislatures the inheritors of the privileges of the English House of Commons, the Supreme Court has defined and limited this inheritance.

At the heart of the case was the power and privilege of Parliament to expel 11 MPs who had, in the opinion of the two Houses of Parliament, brought disrepute to Parliament by accepting bribes for putting questions in Parliament and, in the case of one Rajya Sabha member, by misusing the MPLAD (Member of Parliament Local Area Development) scheme to make monetary gains for himself.

The swift action of the Speaker of the Lok Sabha and the Chairman of the Rajya Sabha on the very day of disclosure of the taking of bribes on a TV channel and shortly thereafter by the two Houses to expel them enhanced the reputation of Parliament in the eyes of the public. This self-cleansing by Parliament was almost universally acclaimed. But in India every political matter becomes a legal question and so it was challenged in the Supreme Court by the 12 expelled MPs.

The MPs challenged their expulsions claiming that the Indian Parliament did not have the House of Commons’ power and privilege to expel an MP, though the Indian Constitution gave legislatures the same privileges, powers and immunities possessed by the House of Commons. They further said that they were not guilty as the videos showing them accepting bribes were morphed and they had not been given a fair opportunity by the committees set up by the two Houses to investigate their misconduct. A bench of five judges of the Supreme Court, after an extensive hearing of 12 days, rejected these contentions by a majority of four judges headed by Chief Justice YK Sabharwal.

The expelled MPs said that the privilege of expulsion was not available to the Indian Houses of Parliament for two basic reasons. First, they argued, there was no provision for expulsion in the articles pertaining to disqualification of members of the two Houses in the Indian Constitution. Second, they contended that the power of expulsion exercised by the House of Commons was peculiar to it as it was part of its privilege to determine its own composition, while the Indian Parliament did not have the right to determine its own composition.

Both these contentions were rejected in the majority judgment of the Supreme Court. The court held that the power of disqualification of an MP was different from the power of expulsion, which was in the nature of a punishment imposed on the MP. The court also stated that the House of Commons’ power to expel did not arise only from its power to determine its own composition but was an independent power to punish a member for conduct it considered unworthy of a member. There was nothing in the Indian Constitution which denied this privilege to legislatures in India.

The court held that legislatures in India must of necessity have the power to expel members for their misconduct. It quoted an Australian court, which said, “That the proper discharge of the legislative function by the council demands an orderly conduct of its business is undoubted. That it demands honesty and probity of its members should be equally undoubted. Indeed, the need for removal and replacement of a dishonest member may be more imperative as a matter of self-preservation than that of an unruly member.”

On the actual facts of the expulsions, the court rejected the case of the MPs that the Speaker had prejudged the matter with a bias against them. It noted that the resolutions to expel them were virtually unanimously passed by the Houses and the MPs had been given a fair opportunity to defend themselves and there was no substance in the plea that the videos were fabricated or morphed. The judgment stressed that the extent of punishment was within “the prerogative and sole discretion of the Houses”.

Whilst this part of the judgment is a clear vindication of Parliament’s privilege to expel members and punishment meted out to the 12 MPs, another part of the judgment is likely to be a matter of concern for the legislatures. The judgment cuts down an important privilege of legislatures in India to be the sole judge of their internal proceedings. For over a century, courts in England had conceded that they had no power to inquire into what was said or done in the Houses of Parliaments following the famous case of Bradlaugh in 1886. In that case the court had acknowledged that “The jurisdiction of the Houses over their members, their right to impose discipline within their walls is absolute and exclusive. They would sink into utter contempt and inefficiency without it.” This rule of “exclusive cognizance” of the internal proceedings of a legislature was also followed in India and other Commonwealth countries.

The latest judgment of the Supreme Court now holds that legislatures in India cannot claim immunity from judicial scrutiny even in respect of their internal proceedings as such an immunity is inconsistent with the Indian Constitution. The court held that if the proceedings of a legislature are tainted with substantive or gross illegality or unconstitutionality or are mala fide or have denied natural justice to a person, their proceedings would not be protected. However, it added it would make a generous presumption of honesty and good faith in the proceedings of the legislature, and its power of judicial scrutiny would not be the usual type of judicial review over the actions of government.

The great question now for debate would be how Parliament and legislatures will react to the taking away of this immunity which they have enjoyed for so many years. It should be noted that judicial scrutiny now asserted by the court will not be merely for matters like expulsion of members but would extend to other proceedings of a non-legislative kind within the legislature if they are said to be illegal or unconstitutional, an example of this being the orders made by the Supreme Court on the Speaker of the Jharkhand assembly in the conduct of proceedings in that assembly in 2005. In the inevitable tension between courts and legislatures on this question, the prime need is to avoid expressions like confrontation and conflict and for legislatures and courts alike to have an informed understanding and consciousness of the limits of their respective powers.

The writer is a Senior Advocate of the Supreme Court and a former Solicitor-General of India